Federal Court of Australia

Beckett v Tax Practitioners Board [2022] FCA 930

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant is to pay the costs of the respondent to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant appeals a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of the Tax Practitioners Board (Board) to terminate her tax agent registration under s 40-5(1)(b) of the Tax Agent Services Act 2009 (Cth) (TAS Act) on the basis that the applicant was not a fit and proper person to be registered as a tax agent pursuant to s 20-5(1)(a) of the TAS Act. The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which permits an appeal to this Court from any decision of the Tribunal on a question of law.

2    The applicant filed a notice of appeal dated 28 May 2021 alleging six questions of law and 13 grounds of appeal. By an application contained in [5] of the applicant’s written submissions dated 11 July 2022, the applicant sought leave to rely on an amended notice of appeal which was provided at that time, introducing four additional questions of law and three additional grounds of appeal. The respondent did not oppose leave being granted.

3    I granted the applicant leave to rely on her amended notice of appeal.

4    Many of the grounds overlap, and in recognition of that, the parties addressed the grounds in groups. These reasons adopt the approach of the parties in that regard.

5    For the reasons below, the appeal is dismissed.

Factual background

6    The applicant became a registered tax agent in 1987. In 2003, the applicant became an approved person under the Electronic Duties Returns (EDR) Scheme operated by the NSW Office of State Revenue (OSR) pursuant to the Taxation Administration Act 1996 (NSW).

7    As part of the Scheme, the applicant was approved to stamp transfers of real property upon receipt of a Notice of Assessment. The applicant was required under the Scheme to have the duty payable available to her prior to stamping a transfer, except where the duty payable would be collected at settlement. The applicant was required to pay the stamp duty collected to the OSR on a weekly basis.

8    In 2009 and 2010, the applicant assisted a client to transfer a property and was aware, at the relevant times, that the transfer was liable to ad valorem duty. On 10 June 2010, the applicant used the EDR system to stamp the transfer of the property from a trust to the client. The duty was assessed at $29,240.00 and the penalty interest was assessed at $17,416.29; a total amount of $46,656.29 was payable. At the time of the transfer, the applicant did not have the amount owing available. Despite that, on 11 June 2010, the applicant processed the transfer of the property to the client. On 10 September 2010, the OSR informed the applicant that her approval under the EDR Scheme was suspended by reason of her failure to remit the payments due. The applicant received a statutory notice requiring her to attend an interview with the OSR on 28 September 2010.

9    On 28 September 2010, the applicant attended the OSR interview and was informed that it was an offence to make false or misleading statements to a taxation officer. The applicant was also advised that she did not have to say or do anything that may tend to incriminate her. The applicant took an oath to tell the truth.

10    During the interview, the applicant produced photocopies of two bank cheques, being copies that she had altered to give the appearance that the bank cheques had been issued on 26 September 2009, in an attempt to demonstrate, falsely, that she had the funds for payment at the time that the transfer was stamped. The bank cheques had been purchased only a day before the OSR interview and both cheques were subsequently cancelled. The applicant also informed the OSR officers that the original bank cheques had been picked up and taken by a bank representative at the settlement of the purchase, which was untrue. The applicant then paid the amount owing around the time of the OSR interview.

11    The applicant was first indicted in respect of her conduct on 29 May 2013. However, those charges were later changed, and on that occurring, the applicant immediately pleaded guilty, and successfully sought the inclusion of the remaining charge as a Form 1 matter to be dealt with on the sentencing of the principal charge. On 7 September 2016, the applicant pleaded guilty to two counts of using a false document to influence the exercise of a public duty under s 254(b)(ii) of the Crimes Act 1900 (NSW) and on 24 February 2017 was sentenced on two counts to a terms of imprisonment of 20 months and 18 months, to be served concurrently. The sentences were suspended upon the applicant entering into a good behaviour bond. That bond subsequently expired without breach.

12    In 2016 the Board became aware of the applicant’s offences. Between July and September 2016, the Board wrote to the applicant seeking information in relation to a charge. On 17 February 2017, the applicant advised the Board that she had pleaded guilty to the offences referred to above. In March 2017, the applicant disclosed the convictions to the Board as part of her annual declaration to the Board.

13    On 9 November 2017, the Board determined to terminate the applicant’s tax agent registration under s 40-5(1)(b) of the TAS Act, effective from 27 December 2017, on the basis that the applicant was not a fit and proper person to be registered as a tax agent for the purposes of s 20-5(1)(a) of the TAS Act.

14    The applicant sought review of that decision before the Tribunal, which affirmed the decision under review on 14 June 2018. The applicant then appealed successfully to this Court and the matter was remitted to the Tribunal for determination: Beckett v Tax Practitioners Board [2019] FCA 353.

15    On 30 April 2021, the Tribunal again affirmed the decision under review.

Tribunal’s reasons

16    It suffices at this stage to give an overview of the structure of the Tribunal’s reasons. Particular paragraphs of the Tribunal’s decision are referred to and recited below when considering the grounds of appeal.

17    After the Tribunal’s introduction, the Tribunal sets out the relevant statutory provisions in the TAS Act at [4]-[8] that identify the mandatory considerations for determining whether an individual is a fit and proper person within the TAS Act. The Tribunal then identifies the issue for its determination at [9], before summarising the respondent’s submissions at [10] and [11]. The background to the matter is addressed at [12]-[27].

18    Immediately below the heading “Offences and sentencing”, at [28], the Tribunal recited three paragraphs from the applicant’s statement of issues, facts and contentions, which describes the conduct of the applicant which formed the offences of which she was convicted, and at [29]-[38] the Tribunal considered the offences and their circumstances.

19    The Tribunal then considered the circumstances of the applicant’s non-disclosure of the offences to the Tax Practitioners Board at [39]-[51], and then at [52]-[54], the Tribunal considered the effect of the applicant’s non-disclosure of a disciplinary determination made by the Legal Profession Board of Tasmania.

20    The next heading in the Tribunal’s reasons is “Fitness and propriety” and from [55] until the Tribunal’s conclusion at [83]-[84], the Tribunal determines the issue it set out at [9]. At [55]-[58], the Tribunal considers the authorities dealing with fitness and propriety, and at [59] the Tribunal considers the offences of which the applicant was convicted, in light of the authorities. At [63], the Tribunal considers the protection of the public as relevant to the question of fitness and propriety. At [64]-[68], the Tribunal considers the reports of Ms Anne Lucas, forensic psychologist, and Dr Richard Furst, forensic psychiatrist. At [69], following consideration of passages recited from the reports and footnoting references to the evidence, the Tribunal concludes that the applicant “did not properly appreciate the gravity of her behaviour or fully accept responsibility for it”. At [72]-[78], the Tribunal considered a number of extenuating or mitigating factors referred to by the applicant, and then as part of the balancing exercise, at [79], the Tribunal considered the public interest. At [81]-[82], the Tribunal reflects on the conclusion it reached from conducting the balancing exercise.

Consideration

Grounds 1A and 1B: nature and identity of the convictions

21    Ground 1A, in summary, complains that the Tribunal erred by finding at [10(a)] and [59] of its reasons that the applicant had been convicted of forging, and had forged, bank cheques, and that the applicant was convicted of lying under oath in an interview with OSR officers. Related to this is Ground 1B, that the Tribunal failed to give reasons as to how it made the findings that form the basis of Ground 1A.

22    The impugned paragraphs relied on as containing error are in the following terms.

23    The first, [10(a)], is as follows:

[10]    As the respondent points out, its finding that Ms Beckett was not a fit and proper person was made in circumstances where:

(a)    Ms Beckett had been convicted of two offences under s 254 of the Crimes Act 1900 (NSW) in relation to the use of forged Westpac and ANZ bank cheques and sentenced to terms of imprisonment (of 20 months and 18 months to be served concurrently) each suspended upon Ms Beckett entering into a good behaviour bond;

24    This paragraph appears in the reasons under the heading “Issue”.

25    The second, [59], is as follows:

[59]    The offences for which Ms Beckett has been convicted are serious. She forged bank cheques and lied under oath in an interview with officers from the OSR. The offences are particularly serious when considered in the context of her registration as a tax agent.

26    The applicant submitted that there was no evidence that she forged bank cheques, that she was convicted of doing so, or that she was convicted of lying under oath in an interview with OSR officers. She submitted that those findings made in relation to her convictions are incorrect. She submitted that the cheques themselves were not forged, and that there is a “world of difference” between making a false file copy of a document “for a wrong purpose” and “forging negotiable instruments”, a distinction which escaped the Tribunal, or about which the Tribunal made a serious error of misdescription. The applicant emphasised that this was a material misdescription of a mandatory consideration in respect of the convictions: see s 20-45(b) read with ss 20-15, 20-A, 90-1 and 40-5 TAS Act. Although it was accepted that the offence of lying under oath which was on the Form 1 was a matter which the Tribunal could take into account, the applicant submitted that offence could not be characterised as a conviction for the purpose of consideration under s 20-45b TAS Act. She submitted that the errors as to the identity, nature and substance of the convictions and the erroneous addition of a non-existent conviction (that of lying under oath) in paragraphs [10(a)] and [59] are errors going to the heart of the discharge of the Tribunal's statutory function.

27    It is trite to observe, as readily acknowledged by the applicant, that the Tribunal’s reasons should be read fairly, and as a whole, and should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 (Plaintiff M1) at [38].

28    The applicant’s submissions consider the impugned passages in isolation and out of the context in which they appear.

29    In respect to [10(a)], as the respondent submitted, it is clear from the opening words of [10] that the whole of the paragraph is a summary only of the respondent’s submission, and not a series of findings or summary of findings that explain the Tribunal’s dispositive reasoning.

30    In respect to both [10(a)] and [59], the applicant’s submission fails to properly recognise that at [28]-[38], before coming to the observation at [59], the Tribunal, under the heading “[o]ffences and sentencing”, addressed in some detail the offences for which the applicant was convicted. No issue is taken with the accuracy of that recitation.

31    It suffices to recite at this stage [28]-[31] (footnotes to evidence omitted):

[28]    According to the applicant's Statement of Issues, Facts and Contentions:

30.     At that stage the applicant was aware that she would need to be able to show that she had available funds to meet the stamp duty obligation on 10 June 2010.

31.    The applicant obtained two bank cheques and created photocopy of the cheques which appeared to show the cheques having been issued on 26 September 2009 rather than 27 September 2010 when the applicant actually obtained the cheques.

32.    The applicant did so in a panic and while not thinking clearly.

[29]    On 28 September 2010, the applicant attended the OSR interview. She was informed at the commencement of the interview that it was an offence to make a statement to a taxation officer knowing it to be false or misleading or to fail, without reasonable excuse, to answer questions relevant to the investigation. She was also cautioned that she did not have to say or do anything which may tend to incriminate her. Ms Beckett took an oath to tell the truth.

[30]    In the course of the interview, Ms Beckett proffered the copies of the bank cheques as evidence that the funds for payment of the stamp duty and interest had been available to her at the time the transfer was stamped. In fact, she had purchased the bank cheques only a day earlier. She bought one, then cancelled it and bought the other bank cheque. She cancelled the second bank cheque a week or so later.

[31]    Amongst other things, the applicant informed the OSR officers that the original bank cheques had been picked up and taken by a bank representative at the settlement of the purchase. The applicant acknowledged her liability to pay the stamp duty and penalty interest on the transfer. The outstanding stamp duty and penalty were paid shortly after 27 September 2010.

32    In these paragraphs the Tribunal correctly identified the substance of the applicant’s conduct which founded the convictions. Rather, the references to “use of forged Westpac and ANZ bank cheques” in [10(a)] and “forged bank cheques” in [59] are, as the respondent submitted, shorthand descriptions of the actual conduct that founded the convictions.

33    Further, at [35] and [36] the Tribunal recited passages from the sentencing remarks of Berman SC DCJ. It is sufficient to recite [35]:

[35]    On 24 February 2017, Ms Beckett came before Berman SC DCJ for sentencing. His Honour recounted the facts, including a description of Ms Beckett’s interview by officers of the OSR:

7.    When Ms Beckett did produce her file for the transfer it contained photocopies of two bank cheques, one from the Westpac Bank and the other from the ANZ Bank. They each bore the date 26 September 2009. She claimed to investigators that whilst the cheques were not in her physical possession at the relevant time the two cheques were available for the payment of the outstanding stamp duty and interest when she stamped the transfer on 11 June 2010.

8.    Further investigation revealed that the dates on the photocopies of the two cheques were forged. Each was only issued on 27 September 2010, the day before the interview, and not as they purported on 26 September 2009. In fact, the offender had bought the two cheques in Hobart where she lived, photocopied them, and forged the dates on the copies of the two bank cheques. She redeposited the bank cheques soon afterwards.

9.    Her intention in using the two false documents was for the Office of State Revenue to accept them as genuine, to explain why she has not remitted the stamp duty when it was due, and to get the Office of Stamp Revenue’s agreement to defer collection of the stamp duty thereby influencing the officers of the Office of State Revenue in the exercise of their duty to recover outstanding stamp duty.

10.    She also told a number of lies in the interview to support her false statement that the forged bank cheques were available to her on 11 June 2010 to pay the stamp duty and interest on the transfer.

11.    She has now pleaded guilty to two offences of using a false document to influence the exercise of a public duty. They are each offences under s 254(b)(ii) of the Crimes Act carrying a maximum penalty of 10 years imprisonment. …

34    As can be readily seen, the language used by the sentencing judge, which includes “forged bank cheques” in [10] of the extract in the recited passage, is the same as that now complained of. The sentencing judge was plainly using that phrase as a shorthand description of the conduct already detailed. I accept the respondent’s submission that the Tribunal used the phrase as a shorthand description to refer back to the actual admitted criminal conduct which was identified in greater detail in the sentencing remarks extracted at [35] and in the Tribunal’s reasons at [29], [30] and [31].

35    From what is said thus far, it is plainly apparent that the Tribunal well understood the offences for which the applicant was convicted and the factual basis of those offences.

36    Also before coming to the observations at [59], the Tribunal addressed the legal principles relevant to assessing the issue of fitness and propriety at [55]-[58]. The focus of the passages from the relevant authorities recited in [57] and [58], is the importance of the honesty and integrity of a tax agent, bearing in mind their responsibilities and obligations. It is those considerations or qualities which [59] was addressing.

37    I note that the first sentence in [59] is unobjectionable. It is the second sentence that is complained of: “She forged bank cheques and lied under oath in an interview with officers from the OSR.” The applicant submitted that the only fair reading of the second sentence reveals that the Tribunal was describing and explaining the offences for which the applicant was convicted, which were the offences it had referred to in the first sentence of that paragraph. However, this second sentence, read in context, was part of the Tribunal’s assessment of whether the applicant is a fit and proper person in light of the legal principles considered immediately above. The second sentence focusses properly on the substance of the underlying conduct. I accept the respondent’s submission that in the second sentence the Tribunal was not addressing the convictions per se, but rather focussing on the substance of the applicant’s actual conduct. The Tribunal was seeking to encapsulate why it is that the applicant’s actual admitted criminal conduct involved serious wrongdoing. The use of the phrase “forged cheques” is explained above. As to the second aspect of [59] complained of, the Tribunal’s reference to the applicant lying under oath in an interview with OSR officers, this conduct was dealt with on a Form 1. That is, it was admitted conduct. It was conduct taken into account in the sentencing process. Such conduct is relevant to the assessment engaged in by the Tribunal regardless of whether there was a conviction recorded. So much was conceded by the applicant. Read in context, the reference to that conduct in [59] is not a finding that the applicant had a conviction for the conduct, but rather it is the substance of the admitted conduct that was being referred to. That substance is relevant to the objective seriousness of her offending, and relevant to the issues of whether she has the honesty and integrity required of a tax agent.

38    There is no proper basis to suggest that, given the Tribunal’s conclusions at [28]-[38] (and in particular at [29]-[31] recited above), that the impugned passages contain factual findings of the offences of which the applicant was convicted, and that the Tribunal had come to an inconsistent conclusion at [59], which is the import of the applicant’s submission. There is no proper basis to suggest that the Tribunal misunderstood the offences of which applicant was convicted, the factual basis of the convictions or the status of the offending conduct.

39    Also in that context I note that later in the reasons at [70], the Tribunal observed that the applicant’s offences clearly involved “some planning which went into obtaining the bank cheques and then creating the forgeries”, which again is an accurate description of what the offences involved, consistent with [29]-[31].

40    Properly read, the impugned passages are not factual findings as to the offences of which the applicant was convicted. The structure of the Tribunal’s reasons is significant. The applicant’s submission relies on an artificial reading of those passages, in isolation from the context in which they appear.

41    It follows, that ground 1A is not established. Nor is the aspect of ground 1B which relates to the lack of reasons for the finding, as it is established from the above that there is no relevant finding.

Grounds 1B, 1, 2 and 3: inadequate reasons

42    The applicant complains that the Tribunal failed to discharge its duty under s 43(2) and (2B) of the AAT Act, and otherwise failed to sufficiently state its reasons in respect to [59] (addressed above), and the demeanour finding in [69].

43    The applicant’s submissions on this ground were, in large part, directed to that aspect of [69]:

As the respondent submits, there was no misunderstanding of the law so far as Ms Beckett’s offending conduct was concerned, and there was no change in the law. Notwithstanding her expressions of contrition, I was left with the impression, from both Dr Furst’s report and Ms Beckett’s oral evidence and her demeanour when questioned on these matters, that she did not properly appreciate the gravity of her behaviour or fully accept responsibility for it. These matters do not lead me to share Dr Furst’s view that Ms Beckett is “highly unlikely” to act in the same manner in the future. This also bears on the weight I can give to character references referred to below.

44    It was submitted that is a key paragraph in which the Tribunal rejected three significant submissions in the applicant's case: that she had demonstrated insight into her wrong conduct and accepted responsibility for it and that she was highly unlikely to err again. It was submitted that the applicant’s oral evidence which was relied on as not appreciating the gravity or not fully accepting responsibility is unreferenced, unexplained and her adverse demeanour is unidentified. It was submitted that the expected demeanour, in the circumstances, was not self-evident (those circumstances included the applicant’s personal circumstances), and that the fact-finder relying on demeanour has an obligation to carefully identify the demeanour relied on and to contrast it with a benchmark of universal normalcy or some norming standard which is said would be expected. The applicant submitted that the obligation to give reasons was particularly important in circumstances where using demeanour as a way of fact-finding is ill-suited to assessing the claims of women, victims of trauma and persons of diverse, non-Anglo-Celtic background, where the applicant satisfies each of those factors, and in circumstances where the hearing was conducted remotely by audio-visual link, with some parts of the transcript recording that aspects of the applicant’s evidence suffered from recording audio failure. The applicant submitted that the conclusion in [69] that the Tribunal was not persuaded that the applicant is "highly unlikely" to err again is stated without sufficient reasons and is given without examination of the applicant's submissions on all the matters that could be expected to bear on that conclusion.

45    In addition, the applicant submitted that the recitation at [62], [65], [72]-[78], [80]-[81] that the Tribunal had ''taken into account" various of the applicant's submissions was merely formulaic and did not provide any reasons as to if or how the Tribunal had evaluated those submissions or how they were engaged, if at all, in the process that led to the conclusion in paragraph [69] or the Tribunal's ultimate conclusion in paragraph [82].

46    The respondent submitted that whether the failure to give adequate reasons amounts to an error of law for the purposes of s 44(1) has not been resolved by the High Court, and in that context, made the formal submission that it does not. The respondent accepted that this Court is bound by Full Court authority to the effect that a failure to give adequate reasons itself amounts to a relevant error of law, citing Dornan v Riordan (1990) 24 FCR 564 at 573; Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 (Civil Aviation) at [49].

47    The respondent’s primary submission was that the Tribunal provided adequate reasons for its decision, although it submitted that even if this Court were to conclude otherwise, the decision ought not be set aside, citing Civil Aviation at [55]; Sent v Commissioner of Taxation [2012] FCA 382; (2012) 128 ALD 34 at [133] citing Dornan v Riordan at 573.

48    Section 43(2) of the AAT Act imposes a duty on the Tribunal to give reasons for its decision. Where, as here, the Tribunal gives its reasons in writing, s 43(2B) provides that:

[T]hose reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

49    The Tribunal’s duty to give reasons is not satisfied merely by setting out its findings on material questions of fact and identifying the bases for those findings. The duty to give reasons carries with it the duty to expose the reasoning process: Wonson v Comcare [2020] FCAFC 76; (2020) 377 ALR 596 at [90]-[93].

50    It is appropriate to consider the terms of [69], but to do so its broader context must first be recited, which included [66]-[68] (footnotes to the evidence omitted):

[66]    The applicant also relied on a report of Dr Richard Furst, forensic psychiatrist, dated 15 August 2019. Dr Furst also gave oral evidence. His report was obtained for the purpose of these proceedings, following a single consultation. Dr Furst was instructed, amongst other things, that Ms Beckett’s offending conduct was not designed to enrich her personally, but was motivated by efforts to “save face” over the beleaguered transaction.

[67]    Dr Furst’s report refers to the “Transactional-related Issues” and includes the following:

Ms Beckett stated the issue for her at the when falsifying the dates on the bank cheques in October 2012 (sic) was her belief that she was acting as an advocate for her clients, rather than an ‘agent’ for the Government.

“She said she ‘panicked’ at the time, stating, ‘I had not ability to think more than one or two steps ahead … I responded to the immediate issue, then had to cover up … I did not have the professional distance and resources to take a step back and engage with the issue … I was in reactive mode’. She also described believing that it was her obligation to ‘create a coherent narrative’ for her client, a belief that was erroneous/misplaced and apparently out of keeping with the relevant legislation.

Her other actions of dishonesty were in relation to covering her actions.

In my opinion there was no relevant psychiatric or psychological explanation for her actions. Ms Beckett being a competent professional who apparently believed she was acting in the interests of her client/s at the time, having full awareness of her actions.

…

Ms Beckett is now aware of the relevant legislation, which says she should be an agent of the government. She now understands she had no right to ‘hedge’ or ‘manipulate’. She now understands she has no right to present ‘alternative facts’. She understand (sic) that the legislation says it has to be based on ‘objective facts’.

Ms Beckett said, ‘I understand the law now … I had been conscious of advocating for my clients.’

When asked how she would handle things should a similar situation occur in the future, Ms Beckett said, ‘Rather than creating a narrative, I would say it is up to the party involved to provide their narrative. I am an agent of authority [i.e. an agent of the Government].

Given her expressed attitudes, knowledge and understanding in this respect, would regard it as highly unlikely for Ms Beckett to act in such manner in the future. Furthermore, she has no indications of mental disorder, personality disorder and has no other criminal offending or other dishonesty issues, suggesting that it is highly unlikely she will reoffend in the future.

[68]    I must say that this evidence, in my view, does not assist Ms Beckett. For Ms Beckett to say, as she apparently did, amongst other things, that she was acting in the interests of her client/s instead of on behalf of the authority, that she was creating a “narrative” for her client/s, that she now understands she has no right to create “alternative facts”, and that she is now aware of the relevant legislation, hardly explains or shows any real appreciation or insight as to what occurred. I did not think these matters, such as the reference to “alternative facts”, were explained or clarified by Mr Beckett in cross-examination.

51    At the conclusion of [68] the Tribunal footnoted a reference to three pages of the hearing transcript. By doing so, the Tribunal precisely identified the oral evidence to which the observations in [69] related.

52    A proper reading of [69] in the context of its preceding paragraphs reflects that the Tribunal’s reasoning is exposed. There are two bases for the Tribunal’s conclusion in [69], referred to therein: first, Dr Furst’s report (this aspect being the applicant’s statements highlighted at [67] of the Tribunal’s decision), and second, the applicant’s oral evidence on that topic. I note that Dr Furst’s report was written in 2019 (the report reflecting that he met with the applicant in July 2019) and the applicant gave evidence at the Tribunal hearing in February 2021. An examination of Dr Furst’s report and the applicant’s answers in the cross-examination at the passages identified by the Tribunal at [67]-[68] (which was directed to what the applicant meant by the answers she had given to Dr Furst), supports and illustrates the reasoning articulated by the Tribunal. In [68], the Tribunal explained the evidence and the obvious concerns with the statements made by the applicant to Dr Furst, and the answers given by the applicant in cross-examination, which then led to the Tribunal’s conclusion in [69]. The Tribunal’s reasoning as to its conclusion in [69] was therefore exposed (and was well open).

53    In so far as the applicant submitted the Tribunal did not explain the reference to demeanour, so much may be accepted. However, the nature of demeanour being impressionistic means it is not always capable of further explanation. Although more could have been said on this topic by the Tribunal, I am not persuaded that in the circumstances, the failure to do so resulted in the Tribunal’s reasoning being inadequate. Even accepting for the purposes of argument that more detail on this aspect was required, the reasoning for the Tribunal’s conclusion as to the applicant failing to fully accept responsibility, and that it did not share Dr Furst’s view that it was “highly unlikely” that she act in the same manner again, are exposed in those passages. The issue of giving content to what the Tribunal meant by “demeanour” is not significant in the context where the statements to Dr Furst and the applicant’s explanations of them in her evidence in the Tribunal are recited in [67]-[68]. The nature of the answers given and the concerns that arise from them, as explained in [68], are obvious. Giving further content could have made no difference to the result.

54    Turning to the broader complaint, that the Tribunal “taking in account” certain matters in [62], [65], [72]-[78], [80]-[81] was merely formulaic, without consideration of the matter.

55    Properly read, I am not persuaded that that submission is correct. As the passages above in respect to Dr Furst’s report reflect, the Tribunal did engage in an analysis of the evidence and submissions. I accept the respondent’s submission that, in effect, each time the Tribunal said it took account of a matter, it was reflecting that it was giving some weight to it.

56    Again, it is necessary to consider the paragraphs in context, which includes the structure of the reasons, described above, at least in part, in addressing ground 1A.

57    After referring to the convictions and sentence, the Tribunal at [39]-[54] next addressed the Board’s submission that the applicant had breached obligations to disclose to the Board the offences when applying to renew her registration in 2013 and 2016. The Board had relied on that failure to disclose as part of the basis on which a finding of not being a fit and proper person was to be made.

58    I note that the Tribunal rejected the Board’s submissions. In this context, at [50], although the applicant made a concession about her obligation to report conduct, the Tribunal did not act on it because it considered the concession was not correctly made. Pausing there. The Tribunal saying so reflects that the Tribunal was analysing, reasoning and explaining its conclusion, which (in light of some of the applicant’s submissions) includes findings in her favour.

59    As described above, the Tribunal next considered the principles applicable to determining the application with reference to the authorities culminating in [62], which is the first paragraph complained of. I note that [62] simply identified the issue for determination. At [62]-[63] the Tribunal stated:

[62]    The question is whether the applicant is a fit and proper person to be registered as a tax agent to be determined at the time of the hearing of the review. The applicant points out that authorities are clear that persons who have committed offences of dishonesty may redeem themselves and be fit and proper persons notwithstanding the offences. And as was pointed out, the exercise of the discretion to disqualify a person from being a tax agent is not to be used in punishment of that person. The purpose of the power to disqualify is to protect the public.

[63]    Of course, protection of the public is not limited to protection of those who may engage Ms Beckett as her tax agent, or protection of the revenue, although those are of course important considerations. Protection of the public is also closely linked with public confidence in the system. The public is entitled to know and expect that persons who occupy the position of a tax agent are of high integrity.

60    The Tribunal thereafter considered the application against those principles, and the reasons thereafter are to be read in that light.

61    Further paragraphs complained of commence immediately thereafter (extract of report recited in [64] omitted):

[64]    The applicant relied on a report of Ms Anne Lucas, forensic psychologist, dated 19 February 2017. Ms Lucas provided her report for the purposes of the District Court proceedings. Her report included:

…

[65]    I have taken this report into account, including what is said of Ms Beckett’s expression of remorse.

62    As to [65], that must be read with [64]. In [64] the Tribunal referred to the report of Ms Lucas relied on by the applicant, and extracted an extensive relevant passage. Having done so, the Tribunal stated at [65] that it had taken this report into account, including what the applicant had said about remorse. This statement and the sequence of these paragraphs reflects that the submission made was considered by the Tribunal. It reflects an acceptance of the applicant’s submission and indicates that weight was to be attached to it.

63    The Tribunal at [66]-[69] next referred to and considered the evidence of Dr Furst, referred to above.

64    No complaint is made by the applicant of [70]-[71], which addresses the applicant’s submission as to whether the conduct forming the offences was premeditated, and her motivation for engaging in it. The Tribunal concluded, inter alia, that the applicant did intend to mislead the OSR officers, she did so under oath, and knowing that what she was doing was criminal. Whatever the motivation, the conduct was designed to undermine the efforts of the revenue authority to ascertain the truth. These passages plainly reflect a reasoning process.

65    At [72]-[78], the Tribunal referred to and explained various submissions advanced by the applicant. In doing so, the Tribunal also referred to the evidence in support, addressing the content of the evidence. I do not accept the applicant’s submission that these passages contain merely a list of topics.

66    I note that at [79], which is not complained of, having referred immediately above to the statements from, inter alia, various clients of the applicant, the Tribunal made observations about the public interest in ensuring tax agents comply with the high standards of integrity, putting those matters relied on into the context of the decision required to be made.

67    At [80]-[81], but particularly in [81], the Tribunal did refer to certain topics, but did so in the context of it having earlier referred to the content of the submissions and evidence relating to those topics. Again, by identifying that the submissions and evidence were taken into account, this reflects that the evidence was accepted and weight was given to it.

68    At [82], the Tribunal states that it has also had regard to the authorities, and that it had referred to the nature, seriousness and the circumstances of the offences for which the applicant was convicted and sentenced. The reference to these matters “also” being taken into account reflects that the Tribunal had regard in conducting its assessment, to those matters advanced by the applicant, as analysed by the Tribunal.

69    The inference that the references to “taken into account” reflects that the submission was considered and weight was given to a matter, is all the clearer when the reasons are considered as a whole, especially as there are occasions, at [68]-[69] and [70], where the Tribunal has made it clear that certain matters were not taken into account. If the Tribunal were not giving weight to the considerations, then further detailed explanation might be expected in that circumstance.

70    These impugned paragraphs of [62], [65], [72]-[78], [80]-[81] must be viewed in the context of the whole reasons, including, relevantly, the conclusions at [68]-[71], and the relevant legal principles and issue to be determined. When that is done, I am not persuaded that the reasoning process has not been exposed. Read fairly, the Tribunal adequately explained why it was not satisfied that the applicant met the criteria for being a fit and proper person. The Tribunal reached that conclusion having considered the relevant evidence and submissions, as analysed by it. Given the relevant principles, and the manner in which they were discussed by the Tribunal (which include [55]-[58], [60]-[63], [79], [82]), in particular, the importance of honesty and integrity, it is apparent from the reasons that the Tribunal was concerned there were serious issues with the applicant’s understanding of her offending conduct: at [68]-[69]. As a consequence, the Tribunal was not satisfied that she was “highly unlikely” to act in the same manner in the future: at [69]. As the Tribunal explained, this bore on the weight to be attached to the applicant’s character references: at [69]. The Tribunal emphasised that the issue is about protection of the public interest, which includes ensuring tax agents comply with high standards of integrity: at [79]. This was considered in the context of the nature and seriousness of the offending (in light of the findings, including at [59], [70], [71]): at [79], [82]. Read fairly, the reasons reflect that in reaching its conclusion the Tribunal placed greater weight on those matters just referred to, than those which were relied on by the applicant in mitigation (which had been accepted by the Tribunal). Read fairly, it is apparent from the reasons why it did so. The reasons given by the Tribunal adequately explain the conclusion it reached, such as to satisfy s 43(2) and (2B).

71    Grounds 1B, 1, 2 and 3 are not established.

Grounds 4A, 4 and 5: denial of procedural fairness

72    These grounds complain that the Tribunal denied the applicant procedural fairness by failing to engage with her substantial submissions and only treating the matters set out at [62], [65], [72]-[78] and [80]-[81] of the Tribunal’s decision in a cursory fashion.

73    The applicant submitted that by merely referring to the topics and stating it had taken them into account, without analysis or a statement of any decision as to whether they were accepted or rejected, and if accepted, how the Tribunal weighed them with the other matters it considered in respect of the applicant's fitness to continue to be a registered tax agent, the Tribunal was not engaging with those submissions. It was submitted that the Tribunal is obliged to engage substantively with at least the important submissions made in the applicant's case and this includes dealing with sub-issues that underpin principal submissions: Plaintiff M1 at [24]-[27]. In addition, it was submitted that the Tribunal did not focus its consideration on current circumstances affecting or demonstrating the applicant's fitness, citing Toohey v Tax Agents Board of Victoria [2007] FCA 431; (2007) 171 FCR 291 at [12]-[13].

74    This ground overlaps to a large degree with matters raised in relation to the preceding grounds. It is unnecessary to repeat the reasons I have given above, which apply equally to these grounds.

75    As explained above, reading the reasons as a whole, the Tribunal’s reasons do reflect the matters relied on by the applicant were considered by the Tribunal. The reasons reflect an understanding and analysis of the matters raised. As noted above, the Tribunal did not accept all the matters relied on, for example, the conclusion of Dr Furst: at [68]-[69], and the applicant’s submission as to the offences being premeditated: at [70]. Also as noted, at [79], the Tribunal having referred to some of the evidence relied on by the applicant, made observations about the public interest in ensuring tax agents comply with the high standards of integrity, putting those matters relied on into the context of the decision required to be made. Each time the Tribunal dealt with those matters reflects or illustrates that the Tribunal was analysing and considering the material relied on, such that the taking into account reflects that the matter was accepted. The factual premise underlying these grounds is not established.

76    It is necessary to address three specific submissions made.

77    First, I do not accept the applicant’s submission that the Tribunal did not correctly apply the principle that a person who has committed an offence of dishonesty may redeem themselves and be fit and proper persons notwithstanding the offence they were convicted of. The Tribunal accepted that proposition at [62], which is recited above.

78    In this context, the respondent referred to the observation of Hill J in Stasos v Tax Agents’ Board [1990] FCA 379; (1990) 21 ALD 437 (Stasos) at [41]:

Thus, where a legal practitioner has been struck off and subsequently seeks readmission to the profession, he may lead evidence that he has redeemed his earlier errors and demonstrate that they did not reflect any permanent defect in character: Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424. It will as Lenehan demonstrates, be a step on the way, to show that the applicant now understands that what he did was in error. Failure to admit the error of his ways, and thereby to show his contrition was fatal to the application made by Mr Clyne to be readmitted. (See Ex parte Clyne, Supreme Court of New South Wales, 12 December 1961, unreported).

At [57]-[58] the Court again refers to the significance of appreciating the significance of the wrongdoing. I note that Stasos is one of the authorities expressly referred to by the Tribunal at [58], and is a footnote reference to [62].

79    I accept the respondent’s submission that, properly read, the Tribunal explained why it found that the applicant did not properly understand what she had done was in error. I accept the submission that, properly read, the Tribunal’s reasons do not reflect that it misapplied the relevant principles, but rather, that it was not satisfied, on the applicant’s evidence, that she had redeemed herself by properly appreciating the gravity of her misconduct or by taking responsibility for it.

80    Second, there is also no proper basis to the applicant’s submission that the Tribunal did not focus its consideration on current circumstances affecting or demonstrating the applicant's fitness. Again, as evident from that passage at [62], the Tribunal accepted that proposition, and stated that fitness and propriety was the issue to be determined. Moreover, the reasons reflect that that focus occurred. As explained above, the concerns expressed about the applicant failing to appreciate the gravity of her behaviour and her acceptance of responsibility involves an assessment of her evidence in 2021, which included statements she made to Dr Furst in 2019 on this topic. This is clearly a relevant topic to any assessment of whether the applicant was a fit and proper person. Moreover, the reasons, read fairly, reflect that the Tribunal took into account the applicant’s current circumstances, and her conduct at the time of hearing.

81    Third, reference is made by the applicant to the fact that the offences were committed outside the five year period provided in s 20-5 of the TAS Act. However, as the applicant accepts that the Tribunal was entitled to take into account conduct outside the five year period, it is unclear what the significance of the applicant’s reliance on this is, save to emphasise that the fitness is to be assessed currently. As noted above, the Tribunal was aware that the offending occurred some time ago, but as explained, the evidence as to the applicant’s appreciation of the wrongfulness of the conduct was current.

82    I am not persuaded that the Tribunal did not adequately engage with the applicant’s submissions in reaching its conclusion.

83    Grounds 4A, 4 and 5 are not established.

Grounds 6A and 6: misapplication of s 20-45(b)

84    The applicant submitted that the Tribunal misdirected itself as to its statutory task and that this may be concluded from the Tribunal's reasons. It was submitted that the Tribunal misapplied s 20-45(b) of the TAS Act by assuming a conviction for offences involving dishonesty in the applicant's capacity as an authorised person for the NSW electronic stamp duty scheme necessarily required cancellation of the applicant's tax agent registration when what the section required was merely serious consideration of it with other relevant matters.

85    In so far as these grounds are said to be based on the Tribunal’s failure to consider the applicant’s submissions in the manner alleged in the preceding grounds, the underlying premise of the grounds, for the reasons explained above, cannot be accepted. Moreover, and in any event, that could not give rise to the assertion that is made in these grounds.

86    There is no proper basis identified for the applicant’s assertion. Indeed, a proper and fair reading of the reasons plainly reflects otherwise.

87    Grounds 6A and 6 are dismissed.

Conclusion

88    The applicant has not established the grounds of appeal. Accordingly, the appeal is dismissed with costs.

Associate:

Dated:    12 August 2022